Posted
by
Unknown Lamer
on Tuesday July 09, 2013 @07:04AM
from the nowhere-to-hide dept.

The EFF has been attempting to sue the government over illegal surveillance since the Bush administration, and, despite repeatedattempts to have the case dismissed because of State Secrets, a federal judge has now ruled that the case must go forward in public court, throwing out the government's State Secrets argument. From the order: Having thoroughly considered the parties' papers, Defendants' public and classified
declarations, the relevant legal authority and the parties' arguments, the Court GRANTS the
Jewel Plaintiffs' motion for partial summary adjudication by rejecting the state secrets defense
as having been displaced by the statutory procedure prescribed in 50 U.S.C. 1806(f) of FISA. In both related cases, the Court GRANTS Defendants' motions to dismiss Plaintiffs' statutory
claims on the basis of sovereign immunity. The Court further finds that the parties have not
addressed the viability of the only potentially remaining claims, the Jewel Plaintiffs'
constitutional claims under the Fourth and First Amendments and the claim for violation of
separation of powers and the Shubert Plaintiffs' fourth cause of action for violation of the
Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants' motion for
summary judgment on the remaining, non-statutory claims."
Although some statutory claims were dismissed, the core Constitutional questions will be litigated.

Military will always expand their power. The Judiciaries job is not to *trust* the military to do the right thing, its to *check* they are doing the right thing. Each and every time, warrant by warrant.

When the FISA court granted *blanket* warrants, for all data of a class, on the *trust* that the NSA would filter and only use the portion of the data for the intended purpose it failed its duty. When NSA decided to start storing data on everyone in 4 huge data centers, it clearly intended to keep everything on everyone. Not limiting the data to just terrorists.

Where was the judicial oversight? Kept in the dark by abuse of secrecy.

from Wikipedia article "Central Intelligence Agency":In September 1947, the National Security Act of 1947 established both the National Security Council and the Central Intelligence Agency.

It is a separate agency. Period. That CIA and DOD cooperate on some matters (transportation, signals, paramilitary training and action, for some examples) is no wise equivalent to control. Each body is quite protective of its own space and prerogatives. Most DCI have been civilian, often with little or even no military experience.

From the Wikipedia article on "National Security Agency":The National Security Agency (NSA) is the central producer and manager of signals intelligence for the United States, operating under the jurisdiction of the Department of Defense.

I think the ATF and FBI should hold a siege on their compound until they surrender their weapons and come out peacefully. Or just burn the fuckers to the ground like every other para-military organization in the country.

Well all that shows is that CIA is now a para-military organization. That doesn't mean they're controlled by the Military.

I never said that. I just said that both of them are controlled by the same person(s).

Who I suppose is technically a military person, being the head honcho of the military.. who for conveniencys sake happens to keep a separate branch. It's only international customs why CIA exists as a separate institution and isn't officially branded as a section of the military like the navy... well, that and budget reasons, can funnel money from one to the other now if congress doesn't approve funding the other.

The CIA has had their own drones that were completely independent of the military. That said, they are now turning over their drones to the military and will no longer have their own fleet. The will need to coordinate with the military for future drone strikes.

The CIA has had their own drones that were completely independent of the military. That said, they are now turning over their drones to the military and will no longer have their own fleet. The will need to coordinate with the military for future drone strikes.

Actually, I think the idea is that the military won't need to coordinate with the CIA for future drone strikes. The CIA WILL need to coordinate with the military to use the drones for intel gathering purposes however.

look man, we all know why "cia isn't military" on paper. it's the same reason why u2 spyflights were done by "civilian" pilots. you know it's bullshit, the money comes from the same budgets and the same guy can order both to do whatever he wants.

you could quite easily argue that CIA is the first step on the line of semantics bullshit that leads straight to gitmo. it's just about bending the rules. "we're not military! we just happen to do everything a military does, but since military isn't allowed to do this we do it. sweeeet?"

you know it's bullshit, the money comes from the same budgets and the same guy can order both to do whatever he wants.

The Pentagon just argued that Seal Team 6 was on loan to the CIA when they went after Bin Laden,which excuses their purge of almost all documents that could be requested by the Freedom of Information Act.

The CIA, noting that the bin Laden mission was overseen by then-CIA Director Leon Panetta before he became defense secretary, said that the SEALs were effectively assigned to work temporarily for the CIA, which has presidential authority to conduct covert operations.

"Documents related to the raid were handled in a manner consistent with the fact that the operation was conducted under the direction of the CIA director," agency spokesman Preston Golson said in an emailed statement. "Records of a CIA operation such as the (bin Laden) raid, which were created during the conduct of the operation by persons acting under the authority of the CIA Director, are CIA records."

It doesn't even matter if they're lying, as its unlikely anyone will get punished or dragged before a Judge.

The Pentagon just argued that Seal Team 6 was on loan to the CIA when they went after Bin Laden,

It was my understanding from the beginning that it was a CIA operation with JSOC people temporarily assigned. IOW, I don't think this was ever a "secret". I think this is not unusual and sometimes works in reverse, (CIA/SOG temporarily assigned to JSOC units), as well.

were the pilots in the military? no.the fact many pilots were ex-military is immaterial. so are most Astronauts, and a whole ton of other federal employees. but simple federal law prevents any active military personel from holding any government position while still int eh military. its a simple matter of basic law. you can ignore it all you want, or handwave it away as part of the conspiracy, but that's how it is.

were the planes owned by the military? again, no.the Air Force created the original design req

So therefor the DOJ, the DOE (both of them), State Department, DHS, FBI, Secret Service, DOT, and DOTT, and all other parts of the Executive Branch, including the Library of Congress....are all under military control?

So uh...which service is the President part of? What rank is he?Oh he's not?

Just because the military falls under the Executive branch same as the other doesnt mean the other is "under military control". That logic could be turned around to say because the President is "chief diplomat" the enti

I think he's right. The military -- all branches -- operates with a code of honor that they're pretty darned proud of, and generally stick to as a matter of course. The NSA and CIA operate under the guidance of "we think we need to do X" and very little else.

Regardless of the original genesis, I would far rather trust a platoon of marines or soldiers or sailors, etc., than any number of NSA or CIA employees above zero. The military guys would almost certainly call me "sir" and get between me and any real th

I'm not sure about the CIA, but the NSA is most certainly a sub-branch of the Department of Defense, just like the Army, Navy,...

Anyways I dont see how his claim that the military will always expand its power holds water. The military is at the mercy of the executive branch with regards to policy and the legislative branch with regards to funding.

Anyways I dont see how his claim that the military will always expand its power holds water. The military is at the mercy of the executive branch with regards to policy and the legislative branch with regards to funding.

Yeah, I'd say those with power always (or at least often) try to expand their power. It's not a military thing, it's a power thing.

The NSA is organizationally under the DoD but it is an independent organization that's almost entirely civilian.

Whether or not the NSA is staffed by civilians is irrelevant as to whether it is a part of the DoD. The DoD employs huge numbers of people who do not wear uniforms. If the Secretary of Defense issues and order to the NSA they will follow it. Hence they are a part of the DoD.

To say they are a military organization is really stretching the truth.

It isn't stretching the truth even a little bit. Their chain of command is military. Period. End of story.

The NSA grew out of a military agency, and still has ranking leaders who are ranking military. But it's more civilian than not.

There are only 3 parts of DoD that are unquestionably "military", and that is the actual 3 branches of the military: Air Force, Army, and Navy (which includes Marines*). 4 if you include the Joint Chiefs since they're technically it's own heading in the organizational brackdown. The rest are are civilian sub-departments of the DoD, even though t

I dont see how his claim that the military will always expand its power holds water. The military is at the mercy of the executive branch with regards to policy and the legislative branch with regards to funding.

Its part of DoD, but technically not part of the military anymore. The military (essentially government sub-departments for this discussion) fall under the DoD, but the DoD itself is not 100% military. that's the key distinction. NSA grew out of a military interservice joint agency, and thus has retained its connection to the DoD and still has military ranking members (and facilities on certain bases around the world), but by and large its more civilian than not.

[... blame it on...] on General Hayden who drove it under Bush to military aims [...]

Absolutely. Unlike that guy that Clinton appointed to head the NSA. What was his name? Oh right, General Hayden.

Other military leaders to occupy the office included:

Adm. Stansfield M. Turner (appointed by Carter)

Starting with Lt. George H. W. Bush (appointed by Ford), it's harder to find non-military directors of the CIA because so many men were WWII and Korea vets. The real difference in the modern era, as far as I'm aware, is that starting with Hayden, these guys are maintaining their military career whil

The Judiciaries job is not to *trust* the military to do the right thing, its to *check* they are doing the right thing

The justice system is supposed to be blind and not "trust" anyone. I don't think the FISA court was set up to deal with the Constitutionality of the law itself, but to grant or deny warrants.

Where was the judicial oversight? Kept in the dark by abuse of secrecy.

We need a separate court that is secret like FISA whose purpose is to deal with cases brought up where the evidence brought up in the case should not be made public. They could handle the cases of terrorists, for example or any challenges to instances where the government is doing something that needs to be kept secre

A secret court, unexposed to public scrutiny, will be abused. The idea that oversight equals accountability outside of the view of the public is fairly trusting, and misses the fact that you're trying to fix a problem by making it bigger.

If the judicial branch of the government is going to work outside the framework of law that it is built upon, the what's the point? Without checks that can actually be checked by an outside agency, there is no way to limit infractions, corruption, and abuse.

The court system is supposed to be above public opinion and pubic opinion is not supposed to have any effect on the court's decisions.

If the judicial branch of the government is going to work outside the framework of law that it is built upon, the what's the point? Without checks that can actually be checked by an outside agency, there is no way to limit infractions, corruption, and abuse.

No, this court, like any other, would work within the law. The problem is that without the appropriate clearance, judges are not legally allowed to hear the evidence in the case so judicial oversight is not possible right now. All this would be is a court where the judges have the clearance to hear the cases and the evidence. The evidence in the cases as well as most of the information about the cases could be kept secret so these cases could go to court without damaging national security or the government using that as an excuse to keep the cases from ever being heard.

The courts are not supposed to be above public opinion. This was and is supposed to be a nation for the people, by the people, of the people. That is why the system was designed in such a way that the government had no ability to punish any person in any way for anything without them having a chance to be judged by a representative body of their peers. The jury, as originally designed, is the most powerful entity in the judicial check and balance while itself being checked by having absolute authority to j

The courts are not supposed to be above public opinion. This was and is supposed to be a nation for the people, by the people, of the people.

Laws are passed based on public opinion. Courts judge them based on the Constitution. Lady Liberty has a blindfold for a reason. If enough people feel strongly enough about an issue that is deemed unconstitutional, then the Constitution may be amended. For example, California held an election to in which the public opinion banned gay marriage. A court deemed that unconstitutional. Arizona has passed laws on immigration that were supported by public opinion that the court deemed unconstitutional.

Lady Justice is most often depicted with a set of scales typically suspended from her right hand, upon which she measures the strengths of a case's support and opposition. She is also often seen carrying a double-edged sword in her left hand, symbolizing the power of Reason and Justice, which may be wielded either for or against any party.

Since the 15th century, Lady Justice has often been depicted wearing a blindfol

Sometimes but frequently laws are passed that contradict public opinion. We the public do not vote on every issue. Instead we elect agents to represent us but they do not have to represent the majority opinion and often do not. Furthermore if they did merely follow the majority opinion there would be numerous instances of injustice against groups in the minority. Sometimes what is right or what is necessary isn't always popular and sometimes not even legal. Ask Mr. Snowden.

If it's secret, how do you know? The reason public scrutiny is important is that it enables just anyone to check and see that things are above board. There have been enough examples of people involved in secret dealings lying and withholding information that we know we need independent oversight.

The Judiciaries job is not to *trust* the military to do the right thing, its to *check* they are doing the right thing

The justice system is supposed to be blind and not "trust" anyone. I don't think the FISA court was set up to deal with the Constitutionality of the law itself, but to grant or deny warrants.

The fundamental basis for the FISA court's decisionmaking on the warrants is constitutionality, plus, of course, USC 50 and the established precedents. The problem isn't that that the FISA court (FISC) can't evaluate the constitutionality of the law, it can, but that FISA hearings are ex parte, so there's no one to argue the view that the law is unconstitutional.

Another serious, though subtle, problem with the FISC structure is that there is effectively no appellate review... the court has no oversight. There is an appellate court over FISC, but there is no one to force it to be used. If the government gets the answer they want from the court, fine, they go ahead. If they don't, it's purely at the government's discretion whether they want to appeal, and risk having a precedent set that goes against them if the higher court upholds the original ruling or whether they'd rather just tweak their request a bit and try again.

This creates a situation where the government can push the boundaries of what FISC will allow with no concern that they might get slapped down in any definitive way. As it turns out, based on the numbers published, the court doesn't say "no" very often anyway, and of course there is no appeals process for approved warrants.

The bottom line is that our courts are adversarial for a reason, and since the FISA procedures omit that very important element they're strongly biased in favor of whatever view the government chooses to argue -- because that's the only view that is argued.

No Thank You. We do not. And we should not tolerate one. No secret courts. No star chambers. No secret surveillance. No government operations of any kind that are secret except legitimate military secrets in time of legitimate war.

No government operations of any kind that are secret except legitimate military secrets in time of legitimate war

The problem is that there is always going to be someone that calls any war or anything military illegitimate. Also, surveillance is important even in times of peace. It is worthless if everyone knows what we are looking at and what we find.

Since secrets are important to a government, regardless of your opinion, and since courts are public and have no current ability to hear cases where the matter is deemed secret by those charged, there is no oversight at all. Your resistance to court oversight that can

The problem is that there is always going to be someone that calls any war or anything military illegitimate.

I completely agree with the first part of your statement. No matter what action the military or government take, there will be detractors. I don't necessarily see this as a problem though. This would help the issue be seen from multiple angles. It is the core of scientific consensus. Dissenting opinions should be evaluated on the merit of the argument in the open and not behind closed doors where motives are suspect. The appearance of unregulated and unmitigated impropriety is an issue.

The problem is that there is always going to be someone that calls any war or anything military illegitimate.

And those people have a right to be heard. Sometimes they are right. Even if they are not right they still have a right to be heard and to be able to judge the facts for themselves.

Also, surveillance is important even in times of peace.

Agreed but that does not mean that any surveillance for any reason by any party is automatically acceptable.

Since secrets are important to a government, regardless of your opinion, and since courts are public and have no current ability to hear cases where the matter is deemed secret by those charged, there is no oversight at all.

It does not matter what is important to the government. What matters is what is important to the people represented by that government. I care not a tiny bit if the restrictions on our government makes their job more di

The problem is that there is always going to be someone that calls any war or anything military illegitimate

Yes, but the fact is that the constitution does outline a basis for legitimacy.

I think the real problem is the other way round. The government always tries to find a way to attempt to assign false legitimacy to any kind of rogue military operation or fake undeclared "war" which a portion of the government sees fit to undertake.

The problem is that it's not a adversarial processes. The only side making an argument is the feds. So they get to present the government with whatever information they feel like and there's no-one there to point out they're lieing through their fucking teeth. All these judges should be run out on their ears for even hearing these cases.

It's little to do with soldiers. Everyone's a fucking hero any more here. If a cop or a fireman or heaven-forbid a mail person just does their job, they're now a "hero". If someone walks down the street and doesn't fall into a quivering mass at the corner, pissing itself over the cars and shit driving by, then that someone is a fucking hero.

I think the fact that this has been made public and that the government itself is no longer denying this negates any attempt to call this "state secrets".

However, there will be cases that deal with actual state secrets. For those, we need a court set up to deal with that sort of thing, not just a court to approve warrants, but a court to handle cases brought up by whistle blowers that evaluate the Constitutionality of cases like this.

We have Snowden to thank for this change in attitude. Public sentiment is everything. And yet, the second part of his interview [guardian.co.uk] which addresses pretty much every criticism laid on him (before it was made) never made/. news for nerds, (it got modded down to oblivion on the firehose AFAIK), despite Snowdens story being highly relevant news for nerds...

No surprise there, anyone who watches Snowden in that two part video interview is pretty much immunized against the vast majority of propaganda being slung about to try and discredit him. Slashdot has plenty of shill accounts standing by to target anything that interferes with the propaganda machines message. Paging Cold Fjord in 3, 2,...

Manning was just the mail boy who happened upon memos between politicans that were offensive for their contempt of Americans. Manning got involved after incidentally seeing offensive documents. He was only cleared to "pass out the mail". Like a butler who's seen their boss be an ass too many times and speaks out. Still a breech of trust, but not of job performance.

Snowden was PART of the system to PERFORM the spying, and to actually plan and figure out how to violate individuals' rights... He obviously did

However, there will be cases that deal with actual state secrets. For those, we need a court set up to deal with that sort of thing

No. We need a lack of state secrets. We need an open, transparent government that actually acts in the interests of its people rather than its CEOs. We need a court set up to try every breach of public trust as a capital offense.

"In Soviet Russia" jokes aside, I hate to tell you this, but the KGB would have given Vlad Kryuchkov's left nut to have anywhere near the "Total Information Awareness" at the NSA's disposal today.

The US intelligence agencies have a better reputation than their Soviet or Nazi Germany era counterparts for one and one reason only - They prefer to go high-tech rather than break kneecaps. And make no mistake, while I drastically prefer keeping my kneecaps intact, their

The best way to get rid of "teh terroristz" is to
1. actually be honest and nice to other countries, and
2. not meddle with countries in such a way that they are created in the first place
[...]
How about that? Can you become like that again? For us?
We promise we'll be there for you and embrace you.

We know what you believe, Mr. Obama. You tried doing this and it failed miserably. Stop trying to sell it.

I'm honestly having a hard time picturing what those cases would be. I could see the need for secret courts if one assumes that the very existence of a spy program to listen to foreign terrorists' cell phone calls is a secret. But that's idiotic. The terrorists know we're trying to spy on them. We know that they know. Even before Snowden or Binney. Al Quaeda has been acting covertely since before we actually WERE listening. They weren't holding public meetings in Sudan to discuss the best ways to attack the US.

Regular courts deal with things that need to be kept secret: the names and addresses of witnesses against criminals isn't published in a "People with a price on their heads weekly" magazine. Regular non-secret courts can handle secrets. They won't be outing informants.

Lastly, the pointless secrecy is massively counterproductive. Leaks are going to happen if you make it a moral obligation for someone to report it as you do with secret courts and clearly perverting justice. It seems clear to me that the leaks are going to be more dangerous than you'd have with non-secret courts. The Manning leak had, if I recall, actual sensitive information that regular courts would have likely kept secret, such as informant identities.

However, there will be cases that deal with actual state secrets. For those, we need a court set up to deal with that sort of thing, not just a court to approve warrants, but a court to handle cases brought up by whistle blowers that evaluate the Constitutionality of cases like this.

Can't we just clear the judge and have him review evidence in private? Why do we need a whole new court system?

It couldn't be any more ironic that the when the state secrets act was originally recognized by the court (United States v. Reynolds - 1953) it was based on a lie. There was nothing mission related in the accident report, but of course none of us, including the supreme court justices who ruled on it actually knew that for another 47 years.

1. Trial will be drawn out for six months to two years by motions, security considerations, etc.2. Regardless of rulings, appeals will take a further two to five years.3. Meanwhile, the government will continue to do as it damned well pleases.4. Through it all, 99% of the public will pay more attention to American Idol or Nascar.5. Poor ~pj at Groklaw will be driven to distraction by the huge briefs and exhibits expected to be filed.6. Major media will spin everything pro-government.7. At the end of it all, regardless of legal gymnastics, there will be no practical difference.

Don't worry - they'll start the next illegal program now so that when this one gets struck down, its replacement will be humming along nicely.

'Soverign immunity' is what makes this form of government unjust in the first place. To hear the government lawyers use it as a defense claim is to hear them say, "but your honor, we're entitled to injustice." It's enough to make one's inner Bastiat's skin crawl.

You didn't go far enough with #7. Not just no practical difference, we'll have no difference at all, because the executive branch will simply ignore the ruling, the same way Holder regularly does, and Reno and Ashcroft did before him (DOJ != Judiciary) ; The same way the FDA does when it doesn't "like" court orders to make certain drugs available without discrimination. The same way the entire intelligence community has done for years (*cough* guns to contras funded by running the international drug trade and all pardoned by former CIA directer Bush-the-Elder *cough*).

And we worry about some phone call tracking? We have an outright rogue government, not even pretending to give a shit about its citizens anymore, and we really care about the latest distraction over whether Snowden counts as a hero or a traitor?

It isn't without precedence. Andrew Jackson reportedly said regarding a Supreme Court decision he didn't like (and subsequently didn't follow), "John Marshall has made his decision, now let him enforce it!"

And then people have the galls to call him a strong president. A lawbreaker is more like it.

That's very cynical indeed. I am not saying you are not correct, but I rather wait and see. I am busy with work and school so instead of marching through the streets I give some money to EFF, and in my opinion they do excellent work.

There used to be a good separation between domestic (FBI) and international (CIA, NSA,...) data gathering (for a good reason). In theory, any collection of data, active spying, etc. on US citizens cannot be done under a national security, restricted access setting. Nor could any of the assets used to to collect data (say for an investigation) on one or more US citizen be classified. There are exceptions for US citizens co-operating with a foreign government of course. And data can be withheld during an active investigation, etc, etc. For a long time classified assets were not allowed to be used for domestic investigations.

This separation is now gone of course. There also seems to be an attitude that if the data is collected, and not looked at, its ok as long as there check and balances to ensure that the data is not being looked at. Obviously, in a democracy, a government cannot police itself with no external visibility. It's a fundamental breakdown of the principles of a democracy. Hopefully this will be brought up when this case makes its way to the supreme court.

What is being done is so obviously wrong. It will be an interesting case to determine if the Supreme Court is representing the country or representing the government.

the Court GRANTS Defendants' motions to dismiss Plaintiffs' statutory claims on the basis of sovereign immunity.

So the government thinks it is a sovereign entity that can do whatever it likes? And the court takes that view? I thought the country was the sovereign entity and the government was just a part of it established by the people. When did the government or any part of it get this new status?

the Court GRANTS Defendants' motions to dismiss Plaintiffs' statutory claims on the basis of sovereign immunity.

So the government thinks it is a sovereign entity that can do whatever it likes? And the court takes that view? I thought the country was the sovereign entity and the government was just a part of it established by the people. When did the government or any part of it get this new status?

The people grant the government sovereign immunity to certain things as part of the governing process. Government itself would be illegal without this. It's kind of like the Library of Congress can archive all written works, even though copyright forbids this. They have sovereign immunity for the interests of the people.

Looked at another way, certain laws are written to restrict rights; the government is exempt from some of these laws as it is at cross purposes to restrict governmental rights in these ar

Yes, Bush' reign constituted a brief interlude where there were no spies, no government abuse, no secret agendas, no profit driven wars - only lilies and cake for everyone. The presidents before him and after him were demons, and people just doesn't seem to grasp that the benevolent rule of the one true Bush was cut short prematurely. A God among men should not have to suffer the laws of men, Bush for a third period! Huzzah!